In Today’s ‘Wall Street Journal’: University Finds Student Guilty of Sexual Assault While Police Charge Accuser for Lying About It

July 15, 2011

GRAND FORKS, N.D., July 15, 2011—In a stark demonstration of the failure of campus judicial procedures, the University of North Dakota (UND) has found a student guilty of sexual assault despite the fact that local police refused to charge him with a crime and instead charged his accuser for lying about the incident. Former student Caleb Warner has been banned by UND from stepping foot on any state public campus for three years. Meanwhile, his accuser has been wanted by the Grand Forks Sheriff’s Department for more than a year on the charge of making a false report to law enforcement. Warner has turned to the Foundation for Individual Rights in Education (FIRE) to help remedy this injustice.

"FIRE has long warned that the ill-considered and biased policies and procedures used by university courts do profound injustice to students," said FIRE President Greg Lukianoff. "Caleb Warner’s accuser has been charged with lying to the police about the facts, but if even this isn’t enough to reopen the case, what hope does anyone at UND have for a fair hearing?"

The incident in question took place on the night of December 13, 2009. Sometime before February 9, 2010, Warner’s accuser reported an allegation of sexual assault to the university and the Grand Forks Police Department. UND held a hearing for Warner on February 11, 2010, and informed him on February 16 that he had been found guilty of "Violations of Criminal or Civil Laws, Sexual Assault, and Interference [with members of the university community]."

In finding Warner guilty, UND used the weak "preponderance of the evidence" standard (50.01% certainty) to determine guilt or innocence—an evidentiary standard recently imposed upon every federally funded college in the country under a new regulation from the federal Department of Education’s Office for Civil Rights.

FIRE has led the opposition to this unwise federal mandate, warning that it would likely lead to great injustice for those accused of sexually related offenses. In today’s Wall Street Journal, FIRE Board Chairman Harvey Silverglate explains that this new requirement essentially orders universities "to scrap fundamental fairness in campus disciplinary procedures for adjudicating claims of sexual assault or harassment."

In Warner’s case, the police and the university arrived at very different results. Evidence gathered by the Grand Forks Police Department suggested that Warner’s accuser had not told the truth about being sexually assaulted by Warner. On May 13, 2010, the Grand Forks County District Court formally charged Warner’s accuser with violating section 12.1-11-03 ("False information or report to law enforcement officers or security officials") of the North Dakota Century Code, a Class A misdemeanor, and a warrant for her arrest was issued on May 17. To date, Warner’s accuser has failed to appear to answer the charges against her. The warrant has been outstanding for more than a year.

Warner’s attorney, Steven Light, wrote to UND General Counsel Julie Ann Evans on July 28, 2010, asking for a rehearing in light of this unusual turn of events. UND’s student code allows rehearings with no time limit when substantial new information unavailable during a prior hearing is uncovered. Yet on August 26, then-UND Vice President for Student Affairs Robert H. Boyd rejected this request, erroneously calling it an "appeal" and disallowing it because more than five days had passed since the guilty finding.

In the spring of 2011, Warner asked for FIRE’s help in getting a fair rehearing of the charges against him. On May 11, 2011, FIRE wrote UND President Robert O. Kelley, pointing out the university’s procedural errors and its failure to reconsider the case. FIRE added that while being charged with lying to police was not itself proof of his accuser’s guilt, Warner’s name could not be cleared by the courts so long as his accuser persisted in her flight from the law. FIRE further noted that it was unfair for UND to deny Warner a rehearing simply because his accuser is not meeting her legal obligations.

On May 20, Evans responded to FIRE, once again denying Warner’s request for a rehearing. Shockingly, Evans asserted that the university used the very same evidence to find Caleb Warner guilty of sexual assault that the police and prosecutor used to charge his accuser with lying to law enforcement. Evans further insisted that the fact that Warner’s accuser had not responded to the charge against her was meaningless and that she could not even assume that his accuser knew about the charge against her. (Warner reports that a Grand Forks policeman told him that she actually does know about the charge.)

"UND does not seem to care that the very evidence that it believed made it ‘more likely than not’ that Warner had committed sexual assault was seen by the police and courts as reason to charge his accuser with lying to them," said FIRE Senior Vice President Robert Shibley. "Now that the federal government has required all colleges to use the nation’s lowest possible standard of proof, how many other students will be put in the same Kafkaesque situation?"